Russia's Legal Trajectories.
This book tells the following story: that once there was a civilization called "Western"; that it developed distinctive "legal" institutions, values, and concepts; that these Western legal institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a "tradition." (1)
Our question for todays lively field of Russian law is, could we substitute the word "Russian" for "Western" and proceed to describe the dynamics and characteristics of a Russian legal tradition?
To do so, we must first have the confidence, as Harold Berman did, to challenge commonly held notions of what law is. The proposal to study a legal tradition recognizes both the plurality of understandings of law and the historical construction of all legal systems. What people regard as law in different times and places depends on particular, but often intersecting, cultural trajectories and particular, often intersecting, conjunctures of power.
Second, we must call into question, or at least set into a new context, many of the assumptions about Russian law that have underpinned intellectual, political, and scholarly discourse for at least two centuries. One of the most powerful of these lines of thought is the "not law" conceit, a repeated insistence that Russia did not have a strong legal culture and that "real law" existed only outside Russia in a place called "Europe" or the "West." Discourses about what law should be in Russia can be seen as part of Russia's legal tradition; as such, they have a place in our project. But our emphasis is on practices, on lawmaking and law using, rather than on theory and critique of Russian law. (2)
To uncover the "institutions, values, and concepts" (Berman's terms) of a Russian legal tradition, we must escape from the confines of comparative thinking and checklists of qualities presumed to constitute law. Most scholarly writing on Russian law reverts explicitly or implicitly to comparison with European developments and with "rule of law" as defined, insistently, in the aftermath of World War II. In this evaluative context, the salient questions for Russia become: did its legal history replicate or diverge from a European path, and did its legal system conform to the principles of Western legalism? Never mind that both notions--a European path and Western legalism--obscure the complexity and multiplicity of legal trajectories within Europe and the "West."
In this proposal, we attempt to start out afresh, looking at Russian law in intertwined spatial and chronological perspectives. Spatially, our approach is both more global and more local. Russia's geopolitical environment was indeed crucial for its legal tradition, but that location, we argue, was not uniquely European. Russia was from the beginning and is to this day in meaningful contact and interaction with cultures and polities to its east and south as well as to the iconized "West." It is imperative to enlarge the region of reference for Russian law beyond Europe. Where principles and qualities of law are concerned, we take a local approach and work outward, revealing those practices and habits of legal rule that emerged over time in what became Russia's political space. The lining up or checking off of these Russian legal traits against the attractive fiction of a universal "rule of law" is not our goal.
If the space of Russian legal development was Eurasian in the first place, and even transoceanic after Russian expansion and in the context of "international" law, what about time? Our approach intersects with recent studies of Russian law that challenge conventional assumptions about the uniqueness and/or backwardness of Russian law. But efforts to show that Russian law was on the same track as "other civilized states" or that in various aspects of law Russia was "ahead" of other societies put legal developments on a time line toward perfection that daily becomes harder to defend. Moreover, making judgments about being "ahead" or "behind" assumes that we agree on what constitutes improvement. (3)
The notion of "stages" of historical development and normative approaches to law are closely linked in scholarship, in part because the subjects of historical inquiry--in our case, the users, makers, and interpreters of laws--were themselves concerned with the connection between law and morality. In the past as well as the present, litigants, petitioners, judges, and critics expressed their positions in appeals to supposedly shared ethical standards. Some of these discourses carry over into scholarship, as in the case of Russian liberals' critiques of autocratic law, based on what they envisioned in the 19th and early 20th centuries as a more "advanced" European law. (4) Rather than perpetuate this slippage between subjects' and scholars' assumptions, in this article we do not enter into the multiple debates on the normativity of Russia's legal history. Instead, we explore its trajectory without using the framework of standards attached to a particular "period" or assumed to be universal.
Avoiding the conventions of "divides" and "reforms," we do not adopt from the start the usual chronology that makes 1864 the foundational moment of Russian law. We share Sergei Antonov's view that 1864 was not a break point but only one substantial initiative in a long line of legal changes. At the same time, we call into question the concept of an "evolutionary" movement of advances in Russian law. (5) Rather than working with a number of conventions concerning "progress"--that law should become more uniform, more distinct from administration, more effective, and so on--we try to identify certain foundational habits and traits as they emerge over several centuries. Our goal is not to create a new chronology of progressive change, but rather to identify underlying tendencies in how Russian law was made, enacted, and used.
At the same time, we do not argue that Russian law is fixed and unchanging. On the contrary, the law was a site for activism and creativity. "Changing the rules" was one of the ways sovereignty worked in Russia. We agree with Richard Wortman's critique of scholarship on Russian law for its insufficient attention to the monarchy, but not with the notion that the sovereign was outside the law and above it. (6) On the contrary, the role of the sovereign was to make and adjust the law. This is a strong quality of the Russian legal system.
Our project is exploratory, historical, and descriptive, not normative. We are unconcerned with questions of comparison, for estimates of likeness or uniqueness lead us back onto particularistic, usually Eurocentric, pathways or impose impossibly universal measurements. In this article we trace out patterns and developments beginning in the formative years of the Russian polity, but we primarily address the workings of law from the 16th century to the present. We adopt four different perspectives on the Russian legal tradition. Our major topics are the connection between law and sovereignty in the transforming polity, the law in its everyday functions, the intermediaries of legal connection, and the technical processes of lawmaking and communication. A concluding section sets forth the enduring characteristics of the legal tradition and discusses possible breaks and shifts in the way law functioned over the long term.
Russian Sovereignty and the Russian Legal Tradition
Laws are made and engaged in particular political systems, each with its habits and accepted ideas about power. Who can and who should make and use laws are questions fundamental to sovereignty, but sovereignty itself has taken many forms over time and space. Critical elements in the configuration and sustenance of sovereignty are the ruling habits of those who claim superior political authority, the regulating practices and ideas of people in areas acquired or sought after by these rulers, and the wider framework of international (interimperial) competition and collaboration at a given moment. What both rulers and subjects find to be "natural" expressions and practices of sovereignty, including their expectations about law and its workings, are shaped by their experience of government as well as by the opportunities and costs of engagement with contesting and competing external powers. In this section we explore the interpenetrating elements of "state and law"--to use the revealing Soviet formulation--that have shaped the Russian legal tradition.
We begin our account with the emergence of what would become a long-lasting state in the region around Moscow in the aftermath of the Mongol conquest. A critical factor for both state and lawmaking was the geopolitical position of the emerging polity. Far enough away from the great empires of their times to get a chance at making their own state, the Riurikid princes drew on a variety of material, administrative, and ideological resources as they expanded their realm. Russian sovereignty was founded on dynastic charisma (refined in Kiev), a state religion inflected by its Byzantine past, and administrative practices adapted to the demands of both Mongol overlords and conquered towns.
As Muscovy expanded over land and people, it confronted, in addition to local authorities and mobile regional rivals, other ambitious powers--Mongol khanates, Polish-Lithuanian and Ottoman empires, Sweden--each with its own blend of political resources. Competition at Russia's ill-defined edges enabled and at times required the absorption of technological and cultural attributes, including legal ones, from greedy neighbors. Successful expansion in turn necessitated maintaining effective control over unlike peoples, whose expectations of justice and power invited attention. Russia's shifting but always imperial composition required adaptable governance. (7) From both inside and out (and the divide between the two was itself never fixed) came imperatives to adjust to unlike cultural environments as well as opportunities to learn how to carry this off. Law was part of this story, as Russia's rulers developed their repertoire of ruling practices.
We can identify multiple strands of what would be woven into a Russian way of rule and into Russian law. Muscovy's "high culture" was Christianity of Byzantine descent--resplendent (when resources permitted), supportive of imperial authority, multilingual, and, for the clergy, literate--with conveniently self-supporting monastic traditions. Codification of laws, a renowned initiative of the Eastern Roman Empire, gradually took hold in what would become Russian space. In Kievan times Riurikid rulers issued laws regulating punishments that enforced family, status, economic control, and political authority. The statutes known as Russkaia pravda coexisted with Orthodox churchmen's regulations on family life.
The Byzantine connection provided Kiev with usable and manipulable legal technologies, based on a preselection from earlier Roman law. The Roman Republic's revolutionary commitment to interpretation of the law by learned juridical specialists--a practice that endured in the western empire and its successor polities (8)--was not part of Muscovy's repertoire. The Kievan offshoot of Eastern Orthodoxy did not acquire jurists trained in institutions of higher learning. (9)
The inspiration to issue consolidated legal compilations seems to have been sparked after the Mongols shattered Riurikid strongholds and forced the reconfiguration of princely power in subordination to the Golden Horde. On their way across Eurasia, the Mongols had generally spared and exploited the clerics of conquered peoples and quickly adopted the means to record and exploit their conquests. Perhaps it is no coincidence that the first extensive family law code, the so-called Kormchaia kniga based on Byzantine laws, was adopted in 1274, after the Mongol conquest. (10)
The Mongols were effective transmitters of practices and attitudes critical to what would later become Russian sovereignty and Russian law. In their many realms, Mongol dynasts were the ultimate legal authorities, who, in an effective adjustment to the demands of imperial rule, recognized and incorporated multiple legal orders under their sway. Moscow's princes, who earned the khanate's patent to exploit, tax, and control, were adept learners from their overlords. (11) The Sudebniki--law codes--issued between 1497 and 1606 encoded Russian power in its basic and practical dimensions, setting fees for administrative services, as well as asserting the prince's right to define and defend subjects' honor and property. (12) During what turned out to be the formative centuries for a long-lasting Russian state, ambitious princes and their officials used expertise in record keeping and communication to enforce the subordination of rivals. Both the habit of ruling unlike groups and the technologies of asserting and maintaining order were fundamental to the emerging polity.
Moscow's successful expansion in turn reinforced another fundament, if that is the word for this practice, of sovereignty--an adjustable approach to legal rule. The conquest of Novgorod with its Baltic connections and distinctive city powers required working out arrangements with local authorities, including the issuing of charters to newly subordinated lords. (13) The habit of adjusting to new circumstances with pragmatic extensions of rights and rules continued as Moscow made its great move east into Muslim territory with the conquest of Kazan in 1552. (14) The incorporation of elites of different origins into governance generated eclectic, ad hoc, but duly effective and sustainable regulations. The great law code of 1649--the Ulozhenie--recorded on a single scroll laws derived from the earlier Sudebniki, the Lithuanian Statute of 1588, revived and transformed Byzantine law, practices developed in Moscow's various administrative institutions, and the less identifiable experiences of over 300 delegates to an advisory assembly as well as a wave of collective petitions. (15)
As this condensed account suggests, the spreading geography of Russian empire configured both sovereignty and law. The polity was imperial from the beginning, expanding in many directions and thus enabled to use the organizational cultures it encountered. The engagement with Europe and the legal traditions of states to Russia's west was only the most recent of such intersections, although, because it is recent, the European reference tends to be read as all important.
Let us sketch out what appear to us to be fundamentals of Russian sovereignty, intertwined with Russia's legal tradition. First, successful political implantation over a huge area required that rulers work through intermediary layers of control--with city councils, clan leaders, religious authorities, and other local powers. Second, because the boundaries of the polity were not fixed, sustaining command demanded political skills directed at outsiders. Contractual relations, contingent alliances, and finding suitable terms for dividing the spoils were essential to successful expansion or surviving defeat. Third, once power was established in what came to be Russia's Eurasian space, both rulers and ruled expected that the subjects of the ruler would not be alike but rather identifiable members of ethnic, clan, confessional, occupational, or other groups. Fourth, the recognized ruler was often, from the perspective of a subject, an outsider from another ethnicity and possibly faith, but he or she was expected to govern these groups, to keep the peace among them, to respect their differences, and to manage their relations with one another. (This expectation adhered to khans, princes, and later emperors, tsars, general secretaries, and presidents.) Fifth, because the vertical linkage of the ruler through empowered representatives was the essential link in the system, local elites had a great deal to gain by working with their overlord. But these same intermediaries were vulnerable to the displeasure of those above and below them. This personalized and contingently representative structure enabled and encouraged fluidity of regulation and institutions. (16) All these characteristics of Russian sovereignty inflected Russia's legal tradition. (17)
The politics of remaking the rules--the laws--was carried on by uncertainly empowered elites at multiple levels. Their responsibility for governance and for legal process was recognized by the polity's subjects. This rule-changing prerogative of a volatile political class accorded with a contracting approach to dealing with both outsiders and internal authorities as well as with efforts to accommodate the customs and expectations of lowly subjects. Flexible, multivariant, differentiated law drew both newcomers and established communities in under the umbrella of imperial control and protection.
Other elements of this self-transforming, political culture were developed in what we are calling Russia's legal tradition. Ultimate authority to grant, make, and change law belonged to the emperor or the emperor-like figure. This legal power was articulated in the laws of the Russian Empire; it was practiced and recognized in communist and postcommunist Russia. (18) Lenin, Stalin, and Putin embody the emperor principle, even when the competence to issue law was formally assigned to institutions or collectivities. (19) As Vladimir Lukin, the human rights commissioner of Russia, put it in his annual report in 2010: "Our political culture, inherited from Russia's great, heroic, but deeply contradictory history, includes to a significant degree faith in 'a good Tsar'--a monarch, general secretary, president--in other words, in any highly placed boss whom one should petition in search of 'a favor' or 'justice.'" (20)
The formal or informal location of superior legal power in a single individual did not mean that this leader made law alone. Instead, elites who circled the leader and served him (or her) were writers and proposers of most laws. They developed, revised, and argued for legislation, both in their own circles and ideally in audiences with the ruler. The engagement of high-ranking officials in writing and rewriting law kept the machine of state in motion. (21)
The configuration of lawmaking power was thus personal (from superior to inferior), vertical, top-heavy, and concentrated. But the enactment and enforcement of law in the large and diverse polity required personnel. Officials served in institutions that facilitated the transmission of legal knowledge and procedures to the population. These institutions, themselves subject to frequent revision, connected the top levels of justice to lower ones. Judicial functions were assigned to a variety of government servitors and institutions--to military or civil administrators, to police, to judges in a variety of courts, to religious authorities.
Although the authority to enforce lawful behavior and legal procedures was assigned to multiple institutions, there was no strong division between judicial and executive powers. The notion of "separation of powers" made little sense in a system where superior power belonged to the ruler, whose administrators had to manage populations with different laws and customs. (22) Russian governance was lawful along Mongol-style lines, devolving authority over small crimes, low-level economic matters, and family regulation to a multitude of officials, clerics, and local courts. As we argue below, the multiplicity of regulatory regimes and the allocation of powers to different kinds of authorities recognized by their co-religionists or other groups facilitated the penetration of "Russian" law into local life.
The law was not a one-way street in any of its multiple settings. Regulations came "down" from the capital, but their implementation depended on regional, local, confessional, ethnic, and other officials. The sovereign's obligation to protect subjects from harm took shape in multiple fora, and it was in these settings that subjects immediately encountered their state and its powers. The plethora of legally empowered institutions mentioned above meant that subjects could, in most cases, go to more than one instance to try to find redress or to punish. If litigants did not like what judges or other officials decided, they could take their complaints to a higher instance. (23) In imperial times, the multiple lines of authority with nodes at various stages of oversight gave persistent litigators ample opportunity to engage the authorities with their complaints and claims. Officials, even from early Muscovite times, struggled to make decisions final. (24) In this sense, Russian jurisprudence had an open-ended quality, consistent with the flexibility in lawmaking we have described.
The multiplicity of judicial settings under the sovereign's supervision reflected a basic practice of Russian governance--the recognition of the variety of cultures among the empire's subjects. As the legal system developed in formalized ways, administrators produced codes and statutes that expressed the ties between distinct populations and the sovereign in the language of rights. (25) Rights were assigned in collective ways to people as members of particular groups defined by ethnicity, status, confession, occupation, location, or other characteristics. Combinations of criteria--such as Orthodox Christians living in the Caucasus--were usual and essential. The system of status groups (estates, sosloviid), each with its own legal rights, was maintained by the administration beyond 1861. Justice did not mean equality among subjects but rather the inclusion of all in a diverse imperial polity. Those who aspired to improve or change their social status worked within this framework to move "up" or "into" another group with its collectively assigned rules. (26) This multiarmed kind of legality buttressed Russia's imperial sovereignty. By permitting the inclusion of new peoples and territories on some of their own terms, the empire avoided many problems that other more homogenizing states faced.
The long-term practice of differentiated legal rule, combined with the disposition to remake laws, gave Russian rulers a transnational (or transimperial) outlook. Borders could be used or ignored or transcended. Russian law blurred distinctions between "domestic" and "foreign." As Paul Werth points out, the tsar could attempt to regulate "foreign faiths"--non-Orthodox confessions whose cross-border connections had disruptive but also expansionist potential. (27) The activism of Russia's specialists in international law in the 19th and 20th centuries drew on a long history of treaty making and revision. (28)
Foreign policy--to use the conventional term--was one legal domain reserved for the sovereign and his closest advisers. Inside the state, whatever its de facto limits, some kinds of legal matters were kept in the focus and control of central authorities. The polity itself, its sovereign, and its way of ruling were to be protected from challenge. The Russian state, embodied by its ruler acting in consort with a controlled inner circle, from early times used the law to punish and prevent threats to the "established" order. Political crime was an ongoing concern of the law, addressed with distinctive rules and procedures. (29)
What seems to stand out to many observers, however, is a contrast between the standardized procedures used for most legal cases and the exceptional treatment applied in cases of apparent challenge to the principles of Russian sovereignty and the rulers who embody it. (30) A fixation on political cases and their prosecution became a strong element in discourses about Russian law, coming from both critics and the sovereign. (31) To take a formula from the revolutionary years, noncompliance with the sovereign's will "would be punished with all the severity of revolutionary laws [budet karat 'sia po vsei tiazhesti revoliutsionnykh zakonov]." (32) The use of the law to protect the sovereign and the state order from harm was and is a fundament of Russian sovereignty.
The supreme ruler's power to overrule existing legal procedures in conditions of threat confirms the centrality of the sovereign to the Russian legal tradition. This power can be used to punish and reward individuals and to transform legal institutions, adjusting them over time and place to evolving demands of governance. In all polities, the capacity to change laws and institutions through procedures legitimated by the "sovereign"--be it the people, a representative body, or an emperor--is essential if law is to sustain social order and well-being. In Russia we see clearly the sovereign's critical role in the ongoing dynamic of changing the rules.
A particular strength of the Russian legal tradition was its extensive provision of accessible legal services to the populations of the empire. From Muscovite times, rulers made efforts to position themselves as protectors of their people; legal procedures were the backbone of their connection to their subjects. Successive law codes produced in Muscovy display a shift from dyadic to triadic law. Earlier regulations such as those of Russkaia pravda addressed the relations between two parties, defining what certain kinds of people owed others for various crimes. In Muscovy's later codifications, the state became a more prominent actor, engaging its own officials to investigate and prosecute violations. (33)
The ruler's claim to superior power gradually put in place mechanisms that inserted the law into everyday life. As the grand princes conquered or otherwise absorbed new regions, they extended their umbrella of legal protection over multiple populations. Three features of this legal outreach stand out: the ruler's claim to be the ultimate legal authority, the employment of officials to process and oversee legal matters, and the involvement of local or other representatives in the resolution of low-level, unthreatening cases.
The allocation of legal powers to regional and military officials might be seen as a threat to the ruler's supremacy. But in this delicate matter both ideology and political economy worked in the tsar's favor. The tsar was insistently portrayed by clerics (both Christian and Muslim) and officials as the people's protector, while empowered intermediaries, who could be both accessed and blamed in legal matters, remained dependent on the tsar for their livelihood. Land, labor, and other resources remained the tsar's to distribute and to take away. (34) High-ranking officials and noble servitors did not have the means to present significant challenges to the central authorities. Instead, they, like others, attempted to use the vertical of power in their own interests or those of the people they oversaw, (35) nourishing both themselves and imperial authority along the way. (36) Corruption affected the law's operations in various ways. In addition to promoting the chances of those who could pay and of officials willing to be paid, it was a means of funding local administrations by local people. As such, it helped keep government going even in turbulent times. (37)
Modest subjects also enjoyed benefits from belonging to this kind of state with its extensive, multiplex legal arrangements. The verticality of authority provided them with ladders of complaint and appeal; at the same time, the multiplicity of accepted legal fora meant that small matters could often be settled with local knowledge. The system's responsiveness to modest subjects' complaints corresponded to the imperative of bringing all people under Moscow's laws.
The opportunity to seek legal redress served many purposes. Litigants received judicial solutions to their complaints, but they also acquired knowledge of the political system in which they lived. Perhaps the most effective propagation of law resulted from officials, dependent on their appointments, simply doing their jobs: as they processed cases they brought subjects into the network of legal process, which highlighted the law-enforcing role of the ruler. Across the growing polity, people could claim that the tsar and the law were on their side as they litigated against one another or appealed to the ruler for justice. (38)
The web of legal institutions grew and thickened over time, in add-on fashion. There was no single principle for which kinds of cases could be adjudicated by which kinds of courts, but provision was made for some kind of legal access for all the tsar's subjects. While major violations were defined by codes and overseen by central authorities, the actual processing of even capital offenses was pushed onto military and other authorities in the regions where the actions took place. (39) Apart from the sensitive matters of crimes against the state, most cases were supposed to be decided by local or regional judges or by church, military, or other proximate authorities.
This localization of process meant that the empire's various subjects encountered the law at work in contexts familiar to them. Let us look into one of these local fora on the cusp of the 18th century--the Preobrazhenskii prikaz. This institution is well known in Russian historiography for its role in prosecuting political crime (slovo i delo) during the reign of Peter the Great. But, as a new study by Carol Stevens shows, the same office was also a legal instance for deciding the ordinary affairs of guardsmen and their families. Soldiers' families, like others, had to have some kind of court. (40)
Who went to that court? Among the litigants were soldiers' wives who wanted to defend their honor against insults. Stevens shows that one-third of the many petitions sent to the court by women between 1693 and 1705 concerned the (for them) recurrent problem of offenses against personal dignity. Complaints about violence--assault in contemporary terms--flowed in from both men and women, including servants who complained of being beaten by their masters. Accusations of theft were also numerous; these concerned everyday items such as cooking pots and chickens. Litigants also attempted to collect on small debts at this court.
As these kinds of cases suggest, the local court played an important role in the lives of Russian subjects. Both honor and material goods mattered to soldiers, officers, guards, peasants, marketers, and their families. Violations of their rights in these essentials of social life could be prosecuted and settled by the court assigned this responsibility.
The provision of legal instances for the management of small-scale crimes and economic disputes became a fundament of the Russian legal tradition. If we fast forward to the beginning of the 20th century, we find an array of local legal instances at work, settling the disputes and misdemeanor charges brought by modest subjects. The kinds of cases peasant litigators took to the township (volost') courts established after the emancipation of 1861, were remarkably similar to those Stevens cites. At the beginning of the 20th century, peasants (members of the legal estate of the vast majority of the population) were still litigating--and in ever increasing numbers--over things like insults, chickens, and cooking pots. (41)
Russian soldiers and peasants were not the only enthusiastic litigators: people of every estate, service group, and/or religion used the empire's courts for matters of daily life. Commercial courts dealt with the many conflicts over money and property among business people. (42) Members of the nobility were famously litigious, as both men and women struggled over inheritances, business matters, family issues, and conflicts with their dependents and workers. (43)
The well-known court reform of 1864 did not introduce law to Russia, but it did add another kind of court into the mix: the new circuit courts, which operated with distinctive procedures--representation by lawyers and trial by jury. The introduction of this instance and the establishment of the bar did not make judicial process uniform. After 1864, imperial law continued to run on many wheels. In some matters, subjects could try to use the multiple fora accessible to them to promote their own interests ("forum-shopping" in today's anthropological terms). As Robert Crews has described in his study of Muslim populations in the Volga region, in the 19th century Muslims could take their conflicts over marriage and other family problems to more than one ecclesiastical body and to civil authorities as well. (44) In the last decades of Romanov rule, Tatars were active litigants at the circuit courts, but this did not mean that they were confined to this instance. (45)
Although generalization about this prolific array of judicial instances is difficult, certain characteristics of everyday law in Russia stand out. The first is accessibility. The profusion of fora meant that Russian subjects could readily go to a court of some kind to get matters of daily importance (inheritance, small debts, honor, theft) resolved legally. This provision of legal services to widely dispersed and unlike subjects relied on the density of nodes in the enormous administrative web. In the late imperial period, the township court for people of peasant status was supposed to be located no further than 12 versts (8 miles or 13 kilometers) from any village in its jurisdiction. (46)
A second quality of everyday justice was affordability. Because there were no lawyers in most lower-level instances, litigants did not have to pay for their services. Of course, potential litigants could and sometimes had to resort to many kinds of intermediaries who had or claimed to have expertise appropriate to a particular legal instance. (47) State fees were minimal, essentially the cost of the required paper form (gerbovaia bumaga). Our knowledge about what intermediaries charged for their services is limited. But as Pavel Sedov has demonstrated for pre-Petrine Russia, there were fixed fees, not bribes, for the different types of paperwork that officials carried out. (48)
We should separate the ideology of the sovereign who fights corruption to provide social justice from the actual practices of officials. The discourse on corruption has a remarkable continuity in Russian public discourse, although it is impossible to discover, with any completeness, the expenses in labor or payments in kind that figured in court cases across the huge empire. But the system in principle did not require litigants, especially the peasants, to pay for legal access. In the last decades of imperial Russia, circuit courts required losing parties in criminal cases to pay court expenses, but township courts did not charge fees at all. At the end of a township case, litigants received one copy of the proceedings officially for free. (49)
In line with the affordability of justice we should note that by the late imperial period, everyday justice at lower-level courts worked very fast. The circuit courts functioned more slowly, but this was connected with their more complex procedures--calling juries, organizing hearings, conducting investigations with trained personnel--and with the more serious cases that they had to process. But for small civil matters or misdemeanor cases, litigants could get a decision rapidly. A survey of cases heard in several township courts in the early 20th century found that the average time between registering a case and its hearing and, in most cases, the decision was 8.8 weeks. Sentences and civil case decisions were also carried out promptly. In accord with regulations, most sentences to arrest were fulfilled within a six-month limit; fines and payments were also collected in short order. (50)
At the beginning of the 20th century, legal processing at primary instances was generally accessible, speedy, and cheap. These attributes, developed over time as the state spread its wings and intensified its administrative technologies, help us understand why subjects made extensive use of lower-level courts and thereby engaged with the law of the land. People of all religions and ranks used the law for their own interests, including challenging the qualifications of those who were supposed to be their judges. Serfs complained against masters; Muslims complained about their mullahs; villagers complained about their local officials. (51) Although these denunciations and pleas for redress or change can be read as indictments of a corrupt system, let us recognize that people were asking the state, through legal channels, to correct problems they had identified. The state expressed its protection through the law, and the law established means to implement that protection.
When we leap further forward to Soviet times, we can see both the reconstruction of the everyday law system and the uses to which the well-established expectations of legality could be put. Within a few years, the "people's" courts in localities, in many cases administered by the same clerks who had been active in the prerevolutionary township courts, had been reestablished as instances for the decision of low-level legal matters. The Bolsheviks' radical new law on divorce showed up immediately in local courts, where the bulk of civil cases concerned divorce, alimony, household divisions, and inheritance. (52) Some Soviet leaders recognized the potential of the legal system for preparing the new world they had promised. In Lenin's view, the law would educate and discipline Soviet citizens. (53) Stalin was more cynical but also attuned to the existence of legal culture in the rural areas. "The Russian peasant loves legality," he wrote to Kaganovich on 26 July 1932 in the midst of the collectivization campaign, arguing that it would be preferable to use the ordinary courts rather than the political police to prosecute theft of "socialist property." (54)
The possibility of using courts to solve ordinary matters survived the Soviet state. After 1991, the numbers of cases registered at low-level courts has grown from year to year as citizens of the Russian Federation litigate over daily-life problems. (55) As in Soviet times, some of this legal activity was required--as in going to court to register a divorce--but overall the resort to courts to solve conflicts over property was entirely voluntary (on the part of the plaintiff). Some kinds of conflicts became far more numerous than earlier thanks to new property arrangements: neighbors who now owned their apartments could go to court over the damages they caused one another; the huge expansion in car ownership led to more crashes and more court cases. (56)
The Russian Federations justice of the peace courts, modeled at least in part on prerevolutionary instances, are easy to access. Forms and formulas, always important in this legal tradition, can now be found on official websites, as well as in hard copy outside the court's offices. The laws themselves are much easier to find, read, and cite than in pre-electronic times. Taking a civil case to the justice of the peace courts is not costly, in part because, as in the past, no lawyer is needed. Litigants now have the option to use a lawyer at these courts (a change from the rule of the prerevolutionary township courts), but most do not do so. The justice of the peace courts are, by contemporary standards, speedy. A survey in 2010 found that 55 percent of the plaintiffs in civil cases had a decision within a month, and another 30 percent of cases were completed within three months. Another, official, source records that less than 1 percent of civil cases go on for longer than the statutory deadline. (57)
These findings suggest that at least at the lower court level, Russian law in the post-Soviet period preserves attributes of the earlier legal system. The state continues to allocate authority to judges who can decide cases rapidly; access to the court and the laws has been simplified; litigants do not have to pay lawyers or exorbitant court fees. As in the past, the "courts of general jurisdiction" (the equivalent of the imperial circuit courts) work more slowly; they try all serious criminal cases and have elaborate investigatory and prosecutorial procedures.
As this brief survey of everyday law over several centuries indicates, the provision of legal services to the state's subjects long ago became an imperative of the Russian legal tradition. The legal system maintained an array of instances that were generally cheap, easy to access, and fast. The rules for each instance were not the same, but they were rules nonetheless. The state's subjects made extensive use of these legal fora, a testimony to the successful spread of legal knowledge in the huge polity.
People used courts, but did they respect them? It has been argued that, at least in the 18th century, peasants' behavior and statements displayed their acceptance of the legal system in which they lived. (58) Our information for the late 20th century is based on the rich science of surveys and data analysis and produces mixed results. Kathryn Hendley notes a strong discrepancy between the justice of the peace and the courts of general jurisdiction where "trust" is concerned: the lower-level courts get much more positive reviews from users. (59)
Use of the courts and opinions of them are, of course, not the same thing, as any professor who collects course evaluations from students should know. Hendley's responders could be satisfied with the results of their cases at Russian courts but still critical of the system as a whole. Perhaps, to take us back to the fundamental connection between Russian law and Russian sovereignty, this disparity reflects the fact that while citizens use the laws, they do not make them. The laws are not theirs. Lawmaking and remaking are the tasks of the ruler and his or her elite servitors. Let us turn to the questions of where the law comes from, how it is implemented, and how the legal system sustains its own workings.
Intermediaries of Russian Law
If everyday law linked Russian subjects and citizens to the sovereign, it was chains of formal and informal procedures that brought law to the empire's inhabitants and made it significant to them. We focus now on the carriers of legal knowledge in both urban and rural, central and distant areas of Russia.
Numerous intermediaries of Russian law were involved in the communication of legal norms and their interpretation and enforcement. They can be typified in three groups: (1) officials, (2) people of different social strata who participated in administration and court practices but were not themselves professionals educated in legal matters, and (3) trained legal experts and entrepreneurs employed in both public and private sectors. How did they communicate law to the people and institutions all over empire? How did their aims, means, and values influence the usage of law in Russia? What did legal expertise mean for Russian law over the long term?
From the Kievan period on, the most visible group of intermediaries of Russian law were administrators and judicial officials appointed by the sovereign or through his authority. Their task was to deliver the sovereign's law to the population in the localities under Kievan rule or to design policies of central administration. The sources suggest two pillars of these intermediaries' entitlement to fulfill these legal services, pillars that are not mutually exclusive but intertwined and interdependent.
The first pillar was personal dependence on the sovereign. Beginning in the 11th century, sources on medieval Russian law, which the historian Aleksandr Presniakov called "princely law" (kniazhoepravo), underline that judicial and administrative functions are in the hands of either the church or the people of the prince--his slaves (tiuny). (60) The second pillar of intermediaries' service was the formulation and detailed description of their functions in legal sources. Daniel Kaiser's analysis of sources on judicial personnel demonstrates that provisions for court procedures were provided in law codes beginning with the earliest editions of Russkaiapravda and that violations of these procedures were to be prosecuted. (61)
Close attention to the letter of the law on administrative and judicial procedures was a key demand of central Russian authority. According to the preface to the 1649 Council Code (Sobornoe ulozhenie), the code was to be printed in order "that all cases be conducted according to the laws in that ulozhenie." (62) Tsar Aleksei Mikhailovich, who sent the Ulozhenie to one of his Siberian voevodas, Timofei Shusherin, in January 1650, instructed this official to "conduct all our business according to this book, so that in Ilimsk fortress there should be equal judgment and justice in all matters for all people of whatever rank, from the high to the low." (63)
This instruction makes clear that the tsar used the printed code to delegate to local governors his responsibility to guarantee equity before the law as a prerequisite of justice and order. By following the sovereign's laws, governors and other local officials were to provide fair conflict resolution and security in the region. In return, the population was expected to provide economic support for the local administration (literally "feeding" [kormlenie]).
Discontent with the performance of local authorities or hardships in feeding them could be articulated in written form through petitions. These served as feedback from the regions to the center. Petitioning was a long-term method of communication between people and rulers in Russia. (64) Petitions were not just requests for mercy for the petitioner; a substantial portion of petitions offered proofs of violations of the law by local administrators and claims about their lawless performance. Petitions were part of the infrastructure of Russian law. They offered an avenue for low-level subjects to enforce intermediaries' compliance with law.
As the Russian Empire extended its rule from Eastern Europe to the Pacific, its authority was enhanced by the inclusion of local people in administration, especially in judicial procedures. These people constitute the second group of intermediaries of Russian law. In addition to officials, they served as representatives of local populations in the administrative apparatus of rural and urban Russia. According to article 38 of the 1497 code, the "best people" (luchshie liudi) of the community had to participate in adjudication. (65) This rule was confirmed in artcles 62 and 72 of the 1550 code. (66) The mandatory inclusion of local people in judicial operations persisted as a practice of law enforcement. With regional variations, locals were engaged in different forms of imperial judicial practice long before the well-known jury-trial system was introduced in 1864.
These local authorities did not have to have special training in state service or law, although their appointments might be subject to other personal requirements. The ability to read and use legal sources was de facto the main criterion for access for local administrators before the 1864 judicial reform. (67) Before the 19th century, a higher education in the law was not considered a meaningful prerequisite for work in judicial institutions or for the implementation of the law in general. Even the most radical reforms of Peter the Great, aimed at separating judicial organs from administrative ones, did not problematize the issue of professional legal education. For certain judicial positions, even literacy was desirable but not required. For example, local judges at the township courts in the imperial period had to be people who were 35 years of age, "enjoy[ed] the respect of their fellow villagers," had not been convicted of a crime, and were neither holders of another administrative post nor keepers of an institution selling alcoholic drinks. (68)
However, local judges were assisted in their decision making by another official, the township clerk, who was expected to be familiar with the legal codes and how to apply them. In-house expertise developed through practice was the basis of both local adjudication and the development of legal professionalism in Russia. The stress was on technical and instrumentalist aspects of law usage.
The state's support for formalized controls over the provision of legality--a pragmatic response to its enormously variegated population--engendered tensions over the quality of legal personnel. From the 18th century on, Russian elites voiced concerns about "clerical justice" provided by uneducated clerks. (69) Complaints about clericalism (,kantseliarizm) in Russia instead of "true law" situated "in the West" burgeoned as legal education, based on textbooks translated from French and German, became a separate sphere of university training. (70) These criticisms of a technical "letter of the law" approach in Russia and the lack of "real" legal professionalism, which was understood to include a theoretical interpretation of legal principles, figure as elements in a long-term discourse about Russian law. (71)
A full-blown critique of Russian law as bureaucratic nonsense developed during the 19th and early 20th centuries and became a strand of political activism in the years of revolution and civil war. (72) After the 1917 Bolshevik revolution the Soviets tried to strengthen the "popular" component of court practices by the inclusion of more representatives of the people. The involvement of ordinary people in court procedures was supposed to strengthen the antibureaucratic stance of the Bolshevik leaders and provide popular justice informed by the "revolutionary consciousness" of the people. However, instead of new people "bringing life" via their revolutionary aspirations to courts, the local population tended to rely on those who had experience in administrative and legal practices. For example, Aaron Retish's research on the Viatka region describes how in 1918 a Bolshevik party inspector reported that peasants elected as a judge their former land captain (zemskii nachal'nik). (73)
For the Soviet leadership this turn to officials with old-regime legal experience confirmed the recurrent intelligentsia stance on peasants' backwardness. At the same time, Bolsheviks themselves relied heavily on the expertise of spetsy--specialists from imperial administration. This phenomenon has been interpreted as exemplary of the pragmatism of Soviet administration. (74) If we shift our angle of view away from the political aspirations and practical needs of the top Soviet authorities to that of ordinary users of the law, we see another kind of legal pragmatism. The choice of a land captain to be a judge reflected the value of his legal expertise to the villagers who elected him. An intermediary who knew the rules and how they should work was useful.
In general, legal expertise was provided by a third group of intermediaries--legal experts and entrepreneurs, who were formally trained as lawyers in the institutes of higher education or/and via service in state organs. Evidence of the popularity of their services can be traced in sources from Muscovy to the present. (75) A striking example of the importance of private legal expertise in one of the most politicized periods of Soviet justice is provided by James Heinzen. In The Art of the Bribe: Corruption under Stalin, 1943-1953, he indicates that even during postwar demobilization and the last wave of Stalin's repressions the sector of private legal expertise was not eliminated. It functioned despite of or alongside the administrative command of state organs and the Communist Party. (76)
Communication of Russian law by legal experts involved all strata and groups in the population; we must question the notion--perpetuated by some in the legal elite--that law and legality were imposed from above on ignorant people who resisted state power. In addition to the many journals aimed at legal scholars, Russian publishers produced an extensive array of practice-oriented legal literature in the late 19th and early 20th centuries. (77) The ample supply of popular legal literature in the late imperial period is a marker of the rapid development of functional legal literacy in the population at large.
Education through these handbooks and other legal advice publications was one of the more visible ways by which legal intermediaries affected the understanding and practice of the law. Their communications played a critical role in the transmission of Russian legal culture and practice over the long term. In the 19th century, people from all walks of life were active litigators in regular matters like divorce, debt, or real estate property transactions, in large part thanks to the activism of the various intermediaries of Russian law. (78)
This overview of three groups of intermediaries of law in Russia offers a glimpse of the infrastructure of legal knowledge disseminated to people of the empire. This infrastructure communicated a modus operandi of Russian law, which informed the activities of both intermediaries and users of the law. The communicated methodology relied on two basic, interlinked principles: devotion to technicality in legal operations and to open-endedness of interpretation of a corpus of law. Once again, we stress that the foundation of both principles of this legal proceduralism was the sovereign. The law was operated by certain people (the intermediaries) for other people (the subjects) in the name of the sovereign and the legal order protected by his power. How did this work in practice?
Technologies of Production and Extension
Technical means were used to draw up and present the set of legal orders that constituted the corpus of Russian law. Fixed and rather stable legal techniques-promulgation, publication, systematization, codification, and dissemination of laws around the empire--supported the authenticity and legitimacy of the legal rule of the Russian sovereign. The technicality and instrumentalism of Russian law have traditionally been discussed from a top-down perspective, as a means of authority and control. (79) But in addition to serving the interests of the sovereign and authorities at all levels, the various intermediaries who mediated the law in a vast empire had to communicate it to different groups of people and in so doing adjust it to specific and varied conditions. Both the interests of the sovereign and high-level authorities and those of the various populations in the vast empire were bound up with the technical conditions of putting the law into effect.
This technical or instrumental approach to law was an element of the sovereign's power. This approach was clearly stipulated by Tsar Aleksei Mikhailovich to his voevoda Timofei Shusherin, mentioned above. The same insistence on the technical authenticity of law is stipulated in the current Constitution of the Russian Federation, article 15.3: "Laws shall be officially published. Unpublished laws shall not be applied. Any normative legal acts affecting the rights, freedoms, and duties of man and citizen may not be applied, if they have not been officially published for general information." (80) Despite this emphasis on the authenticity of laws, a great deal of interpretation and adjustment was expected at the level of the technical configuration of the law in books.
The most obvious evidence of the coexistence of technically defined comprehensive legal procedures and the wide discretion of intermediaries is to be found in the major source of law from 1835 to 1917--the Digest of Laws of the Russian Empire (Svod zakonov Rossiiskoi imperii). Intended to replace the Council Code of 1649, it was designed to present Russian law as a living tradition of the Russian people and their rulers. (81) The credo of the Digest, as Nicholas I put it, was "making no new laws, but bringing order to the old." (82)
This credo emphasized that, unlike the new constitutional ideas imported from the West during the preceeding reign of Alexander I, the Digest was to be a compendium of systematized Russian laws. (83) The Digest's completion was speeded up in response to the revolutionary potential of natural law rhetoric, which had inspired some of the leaders of the Decembrist rebellion of 1825. After the revolt was suppressed, Nicholas I issued his Coronation manifesto prepared by Mikhail Mikhailovich Speranskiy the future architect of the Digest. The new emperor emphasized that any change of rules would remain in the domain of sovereign power: "It is not from daring dreams, which are always destructive, but from somewhere above that state institutions are gradually refined, deficiencies improved, abuses corrected. Through gradual improvement, any modest wish for the better, any idea aimed at affirming the force of law, at broadening true education and industry, which We [the Emperor] have achieved in a lawful, open way for everyone, will always be accepted by Us with reverence." (84) Thus the Digest was to "foster legality" via intermediaries, who were to follow and, if needed, adjust the letter of the law provided by the sovereign. Within the system of the Digest of Laws, an administrator or judge would find a solution relevant to any particular situation and, in case of uncertainty, would be obliged to appeal to higher authorities. All subsequent laws had to be "codified"--that is, included in the Digest.
The supremacy of the updated Digest as a record of the empire's operative legal system was expressed in law and enforced in practice. After the Digest came into force on 1 January 1835, all state institutions and offices were permitted to use only codified legislation. This rule was included in the Statute of the Governing Senate and remained in force until the October Revolution of 1917. (85) An exception was made for ordinary subjects: unlike civil servants they were allowed to refer to articles from earlier (not the most recent) editions of the Digest and its supplements (Prodolzheniia Svoda zakonov).
Who was supposed to codify the laws, and how were they to accomplish this operation? To a large extent, legislators themselves were to carry out the codification with the technical support of codifiers. The plan for the Digest's continuation was elaborated by its first editor and architect, Speranskii. Future legislators were obliged to develop a statement outlining the specific changes that a new law would introduce to the Digest. (86) By providing a clear indication of which articles a new law was rescinding or changing, the possibility of distorting its meaning in the process of its codification in the Digest was substantially reduced.
However, legislators often demonstrated their reluctance to define the changes to previous legal regulations resulting from new laws. Although they were supposed to be clear about how new legislation changed existing regulations, they often resorted to the introductory, phrase, "in order to repeal, change, and add to the appropriate laws" (v otmenu, izmenenie i dopolnenie podlezhashchikh uzakonenii). They then left the task of interpreting to a particular kind of intermediary--the codifier. These codifiers (kodifikatory) thus played a crucial role in lawmaking. The incorporation of new law into the existing system of the Digest faciliated the adjustment of desired legal consequences to existing legal structures, which differed from region to region. Special codifications and rules applied to different regions of the empire, and this condition required the codifers' fine-tuned attention.
The discretion of codifiers acting on behalf of the sovereign was very broad. For this reason, they were perhaps the most influential intermediaries of Russian law. Their crucial role in the interpretation of law during the late imperial period was made possible by the representation of their work as purely technical. Rules on codification procedure were not published until 1885; instead the "Instruction on Codification Procedure" was for the internal use of the Second Department of His Majesty's Own Chancellery. (87) These instructions stipulated that every act that effectively changed existing law had first to be inserted into a chronological catalogue and then divided into articles according to subject content as required by the Digest's structure. If a law's provisions referred to multiple subjects, these would all have to be inserted into the respective parts of the Digest. Only in this way could the Digest fulfill the task of being an exhaustive source of current law. This mode of codification, which began under Speranskii's supervision, lasted until October 1917.
These practices of codification in effect empowered the Second Department and all subsequent codification offices to impose their interpretation of new laws in the Digest and its supplements. As a result, a law that had been codified within the Digest might well differ from its original version. Consequently, administrators in the regions had three versions of a law at hand: an original statute, its codified version in a new edition of the Digest, and its codified version in a previous edition of the Digest. It could happen that the content of all three versions differed.
By law, the newest codified version had to be implemented, but in practice the decision about which one of the regulations to use in the regions was left to the most powerful intermediaries in the administrative apparatus--the governors. In general, the level of discretion was allocated according to the status of intermediaries inside the administration. After the judicial reform of 1864 legal professionals, including very prominent experts, publicly criticized the Digest and the codifiers for "incorrect" interpretations in their subsequent codifications of laws that had earlier been signed by the emperor. (88) In spite of this severe critique, which grew stronger after the elected Duma was introduced in 1906, obligatory codification of law in the Digest was enforced. (89)
The Digest of Laws designed to promote legal certainty thus in reality served as a means of adjusting the legal system to political considerations and on-the-ground conditions. The obligatory codification of laws in the Digest did not provide clear and final regulation but rather opened up tracks of interpretation, which multiple intermediaries could attempt to use.
There were many technically different procedures applied to the operations of various urban, rural, and local courts in Russia. The burden of managing diverse legal orders in the empire could be overcome by intermediaries acting in tandem with people who wanted legal judgments. In addition to the multiple array of courts, the state provided other mechanisms of conflict resolution: in particular, an address to the supervisory powers of the procuracy and a petitioning option. Both these mechanisms also relied on implementing correct technical form: appeals to the procuracy and petitioning were based on the same grounds of written law activated in courts. The multiple paths open to users of the law gave them a degree of discretion in their address to the state and served as a means of adjusting tensions within the imperial legal order.
These functional aspects of the Russian legal system, based on technicality and adjustment, were not openly articulated. The "logic" of multiple and possibly conflicting means of legal access can be seen as a practice rather than an ideological stance. The discretion of intermediaries in the interpretation of the law was formally denied as a threat to the supremacy of the sovereign power. Article 65 of the Fundamental Laws secured the mechanistic principle of law that was to be implemented "according to the exact and literal meaning of laws," safe from the "deceptive inconstancy of arbitrary interpretations." At the same time, in practical terms the open-endedness of the interpretation of existing law by intermediaries and the variety of legal means that people could use to defend or promote their interests were useful tools for providing justice, order, and legal protection for the diverse population of the actively expanding empire.
The long-term continuity of technicality in Russian law interlaced with the practice of adjustment by intermediaries can be seen through the prism of the procuracy. Initiated by Peter the Great to supervise legality at the time of the tsar's radical reforms, the procuracy survived all reforms and revolutions, including the collapse of the Soviet system. (90) Anatolii Sobchak, one reformer of the Russian Federation's legal institutions in the early 1990s, wrote with great irritation that the post-Soviet reforms had not undermined the procuracy as a fundamental and independent institute of law enforcement. (91) He called the procuracy the "fourth power in Russia," which in his view was not compatible with the classical division of legislative, administrative, and judicial powers introduced by the 1993 Constitution of the Russian Federation. We might apply Sobchak's metaphor of the "fourth power" to the systemic role of various intermediaries, whose adjustment of the technically determined law of the sovereign served the vital functions of the communication of law to the people and its appropriation by them.
Russia's Legal Trajectories
In this article we suggest what we see as strong characteristics of a "Russian legal tradition." To conclude, we first summarize what we see as foundational elements of law as developed and extended in Russia's political spaces and then indicate possible breaks and shifts in the long-term trajectory of rule by law over several centuries. A starting point for our approach is the recognition that sovereign and legal practices are intertwined. We cannot separate out "law" as an abstraction from the way the "laws" are made and the ways that laws are interpreted, enacted, and used. Our approach puts the state, interpreters of the law, and users of the law in the same field of inquiry, just as these agents were indeed in the same field of action at any point in time.
Let us turn to our proposed constants in the Russian legal tradition. A bit at odds with the notion of constants in Russian law is our proposition that the system sustains itself over time by remaking its rules. Thus the Russian legal system has inbuilt tendencies and possibilities for adjustment to new circumstances. The flexibility of Russian law is ingrained through the practice of a particular kind of sovereignty in a particular imperial configuration. The law is supposed to be issued by the ruler (via associates and intermediaries of various kinds), and both ruler and intermediaries have incentives to adjust the law to meet an array of changing needs.
Other characteristics of the Russian legal tradition derive from the imperial condition of the polity. The ruler is supposed to provide law to a multiethnic, multiconfessional, multicultural, and far-flung population. The ruler does not have to adhere to the demands for a single standard for all, and indeed is expected to make the law work for subjects in specific ways. Even in the 20th century and in Soviet times, adjustments were made to accommodate conditions in different spaces asserted to be under communist control. Both flexibility in the sense of changes in the law over time and multiplicity in the sense of a high degree of legal pluralism are part of the Russian legal tradition.
The multiplicity of legal regimes contained and expressed in Russian law is related to another enduring legal practice: the provision of legal services to ordinary subjects/citizens for the resolution of "everyday" judicial matters. From the early years of Russian statehood, leaders saw it as their responsibility to provide legal mechanisms to low-level subjects. Over the centuries, the mechanisms for processing "daily life" cases evolved into a spider web of court or court-like sites of accessible adjudication. Speedy and affordable justice, repeatedly asserted in Russian law, as well as adjudication configured by local knowledge were parts of the legal tradition.
Kathryn Hendley suggests "dualism" as a way to conceptualize Russian law--a divide between the ongoing ordinary life of litigation and the high-level and highly visible prosecution of political crimes. (92) Let us make a more general point: throughout Russian history, the state has supported multiple paths to legal resolutions. As Nancy Kollmann points out, in the 17th century, litigants who were in theory supposed to go to local courts would take their cases to venues in Moscow, while cases that should have started out in Moscow were initiated locally. (93) One might see this as a flaw in the institutionalization of the system, but the multiplicity of venues served multiple interests. Litigants could try to choose sites of adjudication to promote their interests as they saw them, but their actions tied them to the state's operations and oversight.
One function of the multiply armed apparatus of the law was to convey complaints about dysfunction to higher authorities. Denunciation of improper behavior on the part of legal officials is another long-term practice characteristic of how Russian law works. Corresponding with and responding to the vertical and personal ties among officials, the right to appeal wrongful decisions to the sovereign was embedded in subjects' legal imaginaries from Muscovite times and endures to this day. (94) In turn, the sovereign's right to review and revise legal activity became a prominent element in how the law functioned. The procuracy, established in the 18th century and active today, institutionalized the oversight of the whole system by officials reporting to the highest authorities.
Another effect of a system that attempted both to provide law to highly divergent groups and to tie them into the state through vertical linkages of officials was an open-ended quality to legal decision making. Petitions to the tsar, general secretary, president, and so on threatened to upend earlier decisions. The multiplicity of lower-level venues and extensive opportunities to appeal meant that persistent litigators could sustain hope for a very long time. And the state could jump back in at any minute to review decisions and sentences. (This practice is highly visible today in the Khodarkovskii and Pussy Riot cases, but it has a long pedigree.) Again, for some observers, this fluidity and openness in legal decision making may seem problematic, but one can also see how it keeps law and the sovereign present in society.
As we have emphasized, this extensive and one might think unwieldy legal apparatus operated according to a highly developed, formal, rule-based proceduralism. The "correct" approach to initiating and processing cases or to communicating laws was essential to making the law work. What has been resentfully maligned as "red tape" reflects a serious effort on the part of legal personnel to get the procedures right in legal matters.
A characteristic of Russian law related to the concern for procedural formalism is the extensive effort put into making the rules known to subjects. In sharp contrast to the usual intelligentsia lament that the "people" don't know the law in Russia, litigants from Muscovite times forward were usually well versed in their legal rights and how to use them.
How did the deceptive image of a citizenry ignorant of the law take such strong hold among Russia's well-educated elites? For one thing, we must consider another characteristic of Russian law--its reliance on collectivized rights. Status groups, religious groups, and ethnic groups were addressed in the legal codes and assigned rights, legally, with different sets of rules. Rule through rights assigned to groups persisted from imperial times into the Soviet period and helped perpetuate the sense of strong distinctions in the population.
The divide most relevant to the legal system was that between lawmakers--the people who through their positions around the sovereign could change the rules--and those subject to these rules. But this division should be nuanced by the critical role of legal intermediaries who enact laws made by others at the apex of law creation. The people who have to carry out legal rules or supervise judicial institutions in practice can affect the ways in which the law functions. Practitioners of many types and statuses--from lowly clerks to governors, district administrators to codifiers--are vital actors inside the legal system.
Interpretation of the law is an area of great sensitivity in Russia. The legal system developed primarily inside the administrative apparatus of the state. It did not devolve directly from universities or canon law, although advisers could bring expertise from nodes of learning to their work. Universities and law faculties became prominent sources of legal expertise only in the 19th century. Perhaps for this reason, Russian law, like Russian statehood, during its formative centuries was not a site of theoretical self-reflection, nor did jurists have a privileged role in interpreting law. The articulation of the system's theoretical foundations is weak, while control over those who would interpret the law is strong.
The state's insistence on its unique power to issue and interpret the law has not stopped critics and activists from trying to use the law to change the system. Dissidents in the 1960s, most prominently Aleksandr Volpin, made the USSR's constitution the foundation of their critiques of the communist leadership. Activists argued variously for upholding Soviet laws (on rights of various kinds), against contradictions within the existing legal system, and for new laws based on what they claimed to be international standards. Charged under the controversial Statute 190 on defaming the Soviet state, Vladimir Bukovskii insisted that the state was violating its own laws on criminal procedure. Bukovskii's lawyer, Dina Kaminskaia, took a technical approach to his defense, demonstrating that his actions were not criminal according to the terms of the law. (95) When dissidents appealed to the human rights provisions of the 1975 Helsinki Accords, they, like the state's leadership, stepped over national boundaries into the wider domain of international legalism and activism.
Control of such challenges has been part of the state's self-defense as an ongoing and legal governing apparatus. Throughout the many centuries of Russian governance, the law has articulated the primacy of the sovereign as the source of the law and the criminality of challenges to the order established by the law.
Let us now turn from these constants of the Russian legal tradition to a provisional sketch of the historical trajectory of this legal system. We emphasized above that the legal system sustained itself through change; it had the capacity to adapt to varied and fluctuating conditions, to challenges that were not identical throughout the polity. The imperial situation that gave rise to Muscovy as a state was itself in flux over the centuries that followed. Riurikids, Romanovs, and late communist regimes were active players in competitions over resources, territory, and people across Eurasia.
Russia's expansion or attempted expansion in several directions left its imprint on the law in at least two respects. First, lawmakers could acquire legal expertise from their several rivals and neighbors. As we noted at the start of this article, from its very beginnings Russian law was a mix. Byzantium, the Mongol khanates, Turkic confederations, the Teutonic order, Poland-Lithuania, the Ottoman Empire--all these political formations with which Russia competed could leave traces in the evolving legal order. When powers in Western Europe gained a dominant place in the world economy, their laws, in addition to other attributes, came into Russia's focus.
A second effect of Russia's geopolitical location can be seen in Russia's active engagement and creativity in the sphere of what is conventionally called "international" law. Dealing with outside powers was an essential part of Russia's repertoire of rule. Treaty making, boundary drawing, and negotiations over captives, hostages, nomads' routes--these were spheres in which Russia's leaders played an active role throughout the history of the polity. This topic requires fuller treatment, but let us note that boundaries between inside and outside remained fungible for Russian authorities (see Sabine Dullin's study of Soviet cross-border politics). (96) The international expertise acquired by Russian administrators and legal professionals made possible their extensive and informed engagement with legal projects beyond Russia's borders. Examples are Russia's promotion of codes of conduct and arms limitations in the 19th and early 20th centuries, and Soviet input into the Nuremburg trials and international human rights law. (97)
The international context of Russian law was itself in flux, and this was one of the factors that pushed the state into making adjustments to the law. But can we identify significant breaks or shifts in the array of mechanisms and practices we have described?
A convention of earlier studies would be that Peter Is turn toward the "West" constituted a major shift in legal practices. If we can forsake the perennial comparison with the "West," however, we can see that these efforts at reform were very much in line with the existing Russian legal tradition. The ruler was often willing and eager to make changes in the law--indeed, he or she was expected to be the font of lawmaking (98)--but these self-correcting efforts were the ordinary way the system functioned, discursively "strengthening legality" rather than constituting a fundamental break. What was new was the much increased power of West European empires, based on their expanded resources and improved technologies. It was well within the established logic of the Russian sovereign and legal power for the ruler to look to this promising source for improving Russia's capacities.
The ruler's engagement with foreigners' techniques was not an innovation of the "enlightened absolutist." As we have seen, the Eurasian empire had grown over centuries by acquiring and using administrative and legal technologies. Adjusting to and learning from outside powers, including their legal technologies, would continue to be an element in the Russian repertoire right up to the present. We stress here that rulers' agendas did not include borrowing Western theories of law. Neither Peter I nor Catherine II were interested in the "autonomy of law." The same can be said about the reforms of the 1990s in the Russian Federation. Many laws were based on borrowings from the West, but at the educational level the tradition of technical legal training was not challenged or changed. (99)
If we turn from technologies back to the intermediaries of Russian law, perhaps we will find significant ruptures in the way Russian law works. Attention to the views of intermediaries takes us to the conventional break point in Russian law--1864. In our view, the reforms of the 1860s can be regarded as another, major example of the adjustable qualities built into the way the law worked. But we want to make distinctions among elements of the reformed system. On the one hand, the new circuit courts, the new laws on the township courts and the Justices of the Peace, even the "temporary" rules on the rural estate that expressed the latest versions of property reform in the decades after the emancipation of 1861--all these endeavors fit into the established framework of multiple paths to justice and differentiated rights. The reformed system retained the tradition of different laws and different legal instances for different groups. (100)
On the other hand, 1864 became a benchmark for university-trained legal specialists. This is understandable: the reform gave them much more authority as professionals. With the introduction of bar associations, adversarial proceedings, and jury trials, the reforms initiated major challenges to the traditional system. The competence to interpret the law, heretofore reserved for intermediaries serving the ruler, was placed, or so it seemed to much of Russian society, in the hands of lawyers and in the votes of jurors. These were indeed stark inroads into the ruler's authority. Through new judicial institutions an important attribute of sovereignty was relocated in a profession and in the people called up from all estates to jury duty. (101)
Many in the legal profession could then see themselves as defenders of what we call today a rule-of-law state, based in civil and equal rights and representational government. These ideas were not familiar to the population at large nor to many at work in the extant legal system, who perceived law as sovereign power in action, leading us to query the effects of critics' profoundly held and challenging convictions. Did the legal projects of elites, the ideological struggles within the intelligentsia, and the conflicts between self-styled social actors (obshchestvennye deiateli) and the state administration affect the trajectory of Russian law? This question takes us to 1917 and its aftermath, when the state was put back together with a new ideology--communism--that would appear to subvert the liberal or democratic-socialist agendas of many in the legal profession in the early 20th century.
After a short interlude of rejecting law in principle and theorizing about "revolutionary law," the Bolshevik leadership rapidly returned to many of the legal practices and habits of the imperial past. Indeed, many professionals from prerevolutionary times were back, including essential intermediaries such as codifiers, experts in the Commissariat of Justice, and local legal authorities.
Reconstruction of the prior legal system with its codifications, collected decrees, legal instructions, formalism, stamps, titles, and multiple courts took place not just once in the 20th century but twice. After 1991, and another apparently radical shift in ideology--this time toward late 20th-century liberalism--the system again reemerged rapidly. The procuracy continued straight through both episodes of collapse and recovery, as did many enactment and communication procedures. Some laws issued in the 1990s were continuations of projected reforms from the late Soviet years. (102)
The survival of Russian law and the Russian state during "revolutionary" periods exhibits, once again, the rule-changing capacity of the legal tradition. In the first round of 20th-century revolutions, the legal system got back on track. First, the brief period of representional democracy in the Dumas, during which sovereignty had begun to slip from the autocrat's grasp, came to an end. The principle of a single ruler (the Party, but de facto Lenin) as the fountain of law was restored. Second, the experiment with an independent bar and consequently with lawyers empowered to interpret the law based on their own standards was gradually shut down. Lawyers continued to serve in the Soviet judicial system, but by the 1920s they were back under the control of the state. (103)
With respect to the trajectory of Russian law, the reincorporation of legal interpreters into the state sphere, this time under a communist sovereign, underlines our view that 1864 did not constitute a definitive break in Russian law. The last half-century of Romanov rule was not a new beginning but a disruption of the Russian legal tradition. Not because the reforms introduced new types of courts and procedures--this changing of the rules lay fully within the traditional approach--but because the creation of the bar and the circuit court procedures (especially juries) seemed to allocate interpretive power to members of "society." It was possible for a time for people outside the state to imagine that they could make the law. After 1917, the functions of interpreting and making law were reabsorbed by the state. It remains to be seen if this postrevolutionary return to a long-standing principle of Russian law and sovereignty will be repeated in the 21st century.
Turning away from questions of sovereignty and interpretation of law, let us look at the question of change from the perspective of those who use the law. If the legal system showed strong tendencies toward self-preservation of its sovereign foundations after the overthrow of the Romanov dynasty and the assertion of Bolshevik revolutionary command, have there nonetheless been significant shifts in the everyday aspects of this legal system?
Many routines and practices connected to everyday law were revitalized in the 1920s. Lower-level instances were tweaked to align with Bolshevik priorities: "people's courts," or "rural courts" could take the place of township courts. The practice of petitioning and appeal could not be eradicated and was formalized in Soviet offices. (104) Getting a legal decision remained cheap and routine.
But the terror of the Civil War, radical experiments with property and other rights during the decades that followed, collectivization and repression against different strata of society, all these policies were bound to have an impact on perceptions of the state and its laws. These and other devastating actions would seem to imply that "revolutionary necessity" and the "interests of the state" did not entail protection of people's honor and well-being as in the past. Whether or not these assaults on the social order had a decisive impact on people's ideas about the law, we can point to one visible shift in legal process with significance for those using the law: the conviction rates of Soviet times are much higher than those of the imperial period, and they remain so to this day.
Space does not permit us to elaborate this change in the outcomes of prosecutions and their potential impact on conceptions of state and law in Soviet times. But by the 1930s, conviction became the usual outcome of a criminal trial, something that had not been the case in the imperial period. We can speculate as to why this happened. As early as April 1917, Lenin had insisted that the main function of the court was "education into discipline" and that courts should "mercilessly punish ... anyone who violates labor discipline in any factory, in any enterprise, in any matter." (105) Stalin took this position to an extreme in the exceedingly harsh labor laws of the 1930s. (106) This shift turned out to have long-term consequences, probably connected to the ways that investigations and decision making were institutionalized in Stalin's time. The sense among judges that a failure to convict is a failure of the system has persisted until today. (107)
This observed shift in judicial outcomes was based on looking at the law in action. Nonetheless, at the level of institutions, v alues, and concepts, it would appear that the legal tradition was not radically disrupted in Soviet times. Remaking of the rules continued (with a vengeance, some might say); the location of sovereign power in the ultimate leader and his entourage recovered rapidly; the aberrant attempt on the part of lawyers and jurists to claim strong interpretive powers was overcome; the law continued to function in everyday regulatory matters; technicality and formalism still reigned supreme. However, if we postulate that the law serves as a medium of communication of values between the state and users of the law, we might wonder about the impact of the change in the conviction rate in criminal cases. If the state always wins, might this not affect users' views of the law and its role in their lives?
Legal Imagination, Legal Practices
To conclude, we turn briefly to questions about perception. Overall, we see that Soviet and post-Soviet rulers have successfully incorporated legal institutions and personnel into their administrations. As Lenin put it in 1918, "Court activity is one of the functions of state administration." (108) The tradition of unseparated powers has been sustained against challenges from liberal reformers. The independent judge with powers of a personal, not a state-determined, social conscience was effectively eliminated after 1917 and made only a short-term appearance after 1991. "Clerical justice" is back in the courtroom. However, the revived legal tradition did not eliminate critiques of the law, and indeed, as suggested above, overtly state-determined verdicts may underlie both the enforcement of the administrative ethos and widespread cynicism about the legal system in the late Soviet years and after.
Consequently one continuity connected to the law in Russia is discursive and negative. Elites still fret about their exclusion from sovereignty, and critics of Russian law are many and vociferous. At times, these criticisms come from leaders themselves. No less a personage than Dmitrii Medvedev, a graduate of the Law Faculty of St. Petersburg University, complained that "Russia is a country of 'legal nihilism'" during his campaign for the presidency in 2008. (109)
This complaint takes us back to two important continuities. The first is the durable tradition of the sovereign's provision of justice through laws, enforcement of which could be corrupted by users of the law (the real legal nihilists!). The other continuity is expressed in the legal imagination of many Russian elites, who remained fixed on the "West" and an imagined international community. We understand the appeal of this discourse, but we want instead to signal its limitations for analyzing how law in Russia works and has worked over the centuries.
Let us keep in mind that there is no such thing as "Western" law: each socalled Western polity, like those of the East and the South, has developed a legal system with distinctive habits, rules, and tendencies. Even a matter presumed to be central to Western law--the independence of the judiciary--takes radically different forms in Great Britain, France, the United States, and elsewhere.
Setting aside the fallacy of universal standards, we want to make two points about discourse and scholarship on the law in Russia. First, a focus on what is absent from Russia has the effect of obscuring what is present. Our goal is to make visible the structures, assumptions, and functions of Russia's law in action over the long term. Second, description is not rehabilitation. In this article, we are not making moral judgments about the way Russian law works or about its structural elements. We are not saying that subjects or citizens "liked" the law, although we note that they used it--a lot. What we do emphasize is the penetration over the long term of Russian legal practices into the habits and expectations of rulers, their counselors, legal intermediaries, subjects, and citizens. For those looking toward the future of Russian law, awareness of these habits and expectations should be taken into account, along with the historical tendency of this legal tradition to change its own rules.
Dept. of History
National Research University--Higher School of Economics, St. Petersburg
Soiuza Pechatnikov ul., 16
St. Petersburg 190008, Russian Federation
Dept. of History
New York University
52 Washington Square South
New York, NY 10012-1098 USA
This article derives in large part from a series of workshops and seminars held at the Wissenschaftskolleg zu Berlin in 2016 and 2017. We express our deep gratitude to the Wissenschaftskolleg's administration for supporting our project, "Russia: The Rule of Law in Question," and to the over 60 specialists--historians, legal scholars and practitioners, anthropologists, and sociologists, from nine countries--who participated in our discussions in Berlin. We thank also the Institut des etudes avancees de Nantes, which hosted one of our workshops. We want to single out the extremely helpful, stimulating, and generous contributions made by Kathryn Hendley and Nancy Shields Kollmann. Part of the research for this article was supported by the Basic Research Program of the National Research University--Higher School of Economics.
(1) Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 1. Berman's pathbreaking study of Soviet law, Justice in Russia (Cambridge, MA: Harvard University Press), was published in 1950; a revised and expanded edition, Justice in the USSR: An Interpretation of Soviet Law, came out in 1983, also from Harvard University Press.
(2) The turn to practice in legal studies took place long ago. See the seminal work by Sally Falk Moore, Law as Process: An Anthropological Approach (London: Roudedge & Kegan Paul, 1978).
(3) See, among others, the innovative studies of William Wagner, Marriage, Property, and Law in Late Imperial Russia (Oxford: Clarendon, 1994); Elcaterina Pravilova, Zakonnost' i prava lichnosti: Administrativnaia iustitsiia v Rossii (vtoraia polovina XIX v.--oktiabr' 1917) (St. Petersburg: Obrazovanie-Kul'tura, 2000); Pravilova, A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton, NJ: Princeton University Press, 2015); Michelle Lamarche Marrese, A Woman's Kingdom: Noblewomen and the Control of Property in Russia, 1700-1861 (Ithaca, NY: Cornell University Press, 2002); Jonathan W. Daly, "Russian Punishments in the European Mirror," in Russia in the European Context, 1789-1914: A Member of the Family, ed. Susan McCaffray and Michael Melancon (New York: Palgrave Macmillan, 2005), 161-88; Nancy Kollmann, Crime and Punishment in Early Modern Russia (New York: Cambridge University Press, 2012); Bill Bowring, Law, Rights, and Ideology in Russia: Landmarks in the Destiny of a Great Power (New York: Roudedge, 2013); and Sergei Antonov, Bankrupts and Usurers of Imperial Russia: Debt, Property, and the Law in the Age of Dostoevsky and Tolstoy (Cambridge, MA: Harvard University Press, 2016).
(4) The liberal perspective is expressed in different ways in the influential works of Richard Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976); Laura Engelstein, The Keys to Happiness: Sex and the Search for Modernity in Fin-de-siecle Russia (Ithaca, NY: Cornell University Press, 1992); Jorg Baberowski, Autokratie und Justiz: Zum Verhaltnis von Rechsstaatlichkeit und Riickstandigkeit im ausgehenden Zarenreich 1864-1917 (Frankfurt am Main: Klostermann, 1996); Elise Kimerling Wirtschafter, "Russian Legal Culture and the Rule of Law," Kritika 7, 1 (2006): 61-70; and D. O. Serov, Sudebnaia reforma Petra I: Istoriko-pravovoe issledovanie (Moscow: Zertsalo-M, 2011).
(5) See Antonov, Bankrupts and Usurers, 15.
(6) Richard Wortman, "Russian Monarchy and the Rule of Law: New Considerations of the Court Reform of 1864," Kritika 6, 1 (2005): 145-70. See also E. V. Anisimov, "Samoderzhavie XVIII v.: Pravo pravit' bez prava," Nestor, no. 7 (2005): 200-7.
(7) For a working definition of empires as a political form, see Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton, NJ: Princeton University Press, 2010), 8-11.
(8) The Islamic caliphates and Catholic and later Protestant states.
(9) In this respect, Russia stands apart from the dynamic described in Berman's Law and Revolution. For the political formations that took shape and prospered or failed in the post-Roman Mediterranean arena, there was no single package of "Roman law" to open. The picking and choosing that happened in these geopolitical circumstances was critical to the eventual construction of distinctive legal traditions. On the absence of learned jurisprudence in Muscovy, see Kollmann, Crime and Punishment, 28.
(10) See Richard Hellie, "Russian Law from Oleg to Peter the Great," in The Laws of Rus '--Tenth to Fifteenth Centuries, ed. and trans. Daniel H. Kaiser (Salt Lake City: Charles Schlacks, 1992), xvi-xxii. On the Mongol conquest and adoption of technologies, see David Morgan, The Mongols, 2nd ed. (Maiden, MA: Blackwell, 2007), 49-98. In spite of the overwhelming focus in the literature on the dominant position of the state over religious institutions, the practical relevance of canon law, which was part of the Russian legal system throughout imperial period, should not be underestimated and is a topic for further study.
(11) On the Mongol contributions to Muscovite administrative and legal practice, see Horace W. Dewey, "Russia's Debt to the Mongols in Suretyship and Collective Responsibility,"
Comparative Studies in Society and History 30, 2 (1988): 249-70; and the comprehensive studies by Charles J. Halperin, Russia and the Golden Horde (Bloomington: Indiana University Press, 1987); and Donald G. Ostrowski, Muscovy and the Mongols: Cross Cultural Influences on the Steppe Frontier, 1304-1589 (Cambridge: Cambridge University Press, 1998). On the Mongol transmission of statecraft, see Michal Biran, "The Mongol Transformation: From the Steppe to Eurasian Empire," Medieval Encounters 10, 1-3 (2004): 339-61; and Nicola Di Cosmo, "State Formation and Periodization in Inner Asian History," Journal of World History 10, 1 (1999): 1-40.
(12) Hellie, "Russian Law," xxv-vi.
(13) Ibid., xxii-xxv.
(14) On the conquest and absorption of Kazan, see Matthew P. Romaniello, The Elusive Empire: Kazan and the Creation of Russia, 1552-1671 (Madison: University of Wisconsin Press, 2012).
(15) Hellie, "Russian Law," xxx-xxxv; Nancy Shields Kollmann, The Russian Empire, 1450-1801 (Oxford: Oxford University Press, 2017), 139.
(16) See the vivid accounts of fluidity in the Petrine reforms of local administration in P. V. Sedov, "'Samaia deistvennaia russkaia konstitutsiia' (Kul'turnyi traditsionalizm srednevekovogo kormleniia i ego modernizatsiia v petrovskuiu epokhu)," Chelo 26, 1 (2003): 35-47.
(17) On the "Eurasian" qualities of this regime, see Jane Burbank, "Eurasian Sovereignty: The Case of Kazan," Problems of Post-Communism 62, 1 (2015): 1-25.
(18) On the expressions and definitions of legal power in imperial times, see Tatiana Borisova, "The Emergence of the Legality Tradition in Russia, 1800-1918" (PhD diss., University of Turku, 2017).
(19) On the cult of the emperor over centuries, see Nina Tumarkin, Lenin Lives! The Lenin Cult in Soviet Russia, enl. ed. (Cambridge, MA: Harvard University Press, 1997); Jan Plamper, The Stalin Cult: A Study in the Alchemy of Power (New Haven: Yale University Press, 2012); G. V. Lobacheva, Samoderzhavets i Rossiia: Obraz tsaria v massovym soznanii rossiian (konets XIX--nachalo XX vekov (Saratov: Saratovskii tekhnicheskii universitet, 1999); and Yves Cohen, Le siecle des chefs: Une histoire transnational du commandement et de I'autorite (1890-1940) (Paris: Editions Amsterdam, 2013).
(20) Quoted in Mary McAuley, Human Rights in Russia: Citizens and the State from Perestroika to Putin (London: I. B. Tauris, 2015), 293.
(21) On circle/leader culture, see Barbara Walker, Maximilian Voloshin and the Russian Literary Circle: Culture and Survival in Revolutionary Times (Bloomington: Indiana University Press, 2004); Plamper, Stalin Cult; and Sheila Fitzpatrick, On Stalin's Team: The Years of Living Dangerously in Soviet Politics (Princeton, NJ: Princeton University Press, 2015). Note that the "circle/leader" formation is found both inside and outside the state. Of course, in some cases, the outsider elites had thoughts of becoming insiders, as happened in 1917.
(22) Although a call for "separation of powers" became and remained a leitmotif for critics of the Russian legal system, the implementation of this concept has nowhere been uniform or absolute. On the complexity of separation of powers in contemporary and Western legal systems, see Christoph Moellers, The Three Branches: A Comparative Model of Separation of Powers (Oxford: Oxford University Press, 2013).
(23) See the examples in M. M. Dadykina, Kabaly Spaso-Prilutskogo monastyria vtoroi poloviny XVT-XVII vv.: Issledovanie. Teksty (Moscow: Al'ians-Arkheo, 2011).
(24) On appeals in this period, see Kollmann, Crime and Punishment, 166-76.
(25) Jane Burbank, "An Imperial Rights Regime: Law and Citizenship in the Russian Empire," Kritika 7, 3 (2006): 397-431.
(26) For examples of trying to attain rights of another group, see Alison K. Smith, For the Common Good and Their Own Well-Being: Social Estates in Imperial Russia (Oxford: Oxford University Press, 2014); and Paul Werth, "Big Candles and 'Internal Conversion': The Mari Pagan Reformation and Its Russian Appropriations," in Of Religion and Identity: Missions, Conversion, and Tolerance in the Russian Empire, ed. Michael Khodarkovsky and Robert E Geraci (Ithaca, NY: Cornell University Press, 2001), 144-72. Elise Kimerling Wirtschafter, Structures of Society: Imperial Russia's "People of Various Ranks" (DeKalb: Northern Illinois University Press, 1994), described the possibilities for movement within the soslovie system.
(27) Paul W. Werth, The Tsar's Foreign Faiths: Toleration and the Fate of Religious Freedom in Imperial Russia (Oxford: Oxford University Press, 2014).
(28) For examples of treaty making with China, see Peter Perdue, China Marches West: The Qing Conquest of Central Asia (Cambridge, MA: Belknap, 2005), 161-73; and with the Ottoman Empire, Will Smiley, From Slaves to Prisoners of War: The Ottoman Empire, Russia, and the Making of International Law (New York: Oxford University Press, 2018).
(29) The history of investigation and punishment of political crime in Russia is a well-developed field of scholarship. The classic approach includes both analysis of legal sources and practices of enforcement: see, e.g., E. V. Anisimov, Dyba i knut: Politicheskii sysk i russkoe obshchestvo v XVIII veke (Moscow: Novoe literaturnoe obozrenie, 1999).
(30) Kathryn Hendley refers to persistent, but evolving, "dualism" in Russian law: see her "Varieties of Legal Dualism: Making Sense of the Rule of Law in Contemporary Russia," Wisconsin International Law Journal 29, 2 (2011): 233-62.
(31) See the recent stimulating examination of the investigation of the Decembrists: Natal'ia Potapova, Tribuny syrykh kazematov: Politika i diskursivnye strategii v dele dekabristov (St. Petersburg: Izdatel'stvo Evropeiskogo universiteta v Sankt-Peterburge, 2017), 209-401.
(32) Tat' iana Borisova, "Revoliutsionnoe zakonodatel'stvo v 1917--1918: Vybor iazyka," Novoe literaturnoe obozrenie, no. 108 (2011): 100-16.
(33) Richard Hellie, "The Law," in The Cambridge History of Russia, 1: From Early Rus' to 1689, ed. Maureen Perrie (Cambridge: Cambridge University Press, 2006), 360-86, here 362-63.
(34) As Ekaterina Pravilova has pointed out, ever since Catherine the Great's reign key resources had been regulated by procedural law, both public and private. In late imperial times, the power of the monarch over these resources was questioned by public figures. But in Soviet times, as Pravilova puts it (quoting Petr Stuchka), the "principle of the 'presumption of state property' was introduced" (Public Empire, 288). This action also implied the power of the sovereign.
(35) The needs of local authorities sometimes prevailed over the letter of the law, as when people requested that their estate be changed. See Smith, For the Common Good, 52-54, 142-77.
(36) On the development of the "service principle" among Muscovy's elites, see Kollmann, Crime and Punishment, 24-25.
(37) Sedov, Samaia deistvennaia russkaia konstitutsiia, 46-47; Susanne Schattenberg, "Kul'tura korruptsii, ili k istorii rossiiskikh chinovnikov," Neprikosnovennyi zapas 42, 4 (2005): 29-35.
(38) See Aljona Brewer, "'Iz poslushaniia Ego Velichestva ne vykhodim, a ostat'sia nesoglasny': The Perceptions of Law, Justice, and a 'Just Authority' in the Petitions of Russian Peasants in the Second Half of the Eighteenth Century," Cahiers du monde russe 53, 1 (2012): 41-64; and Dadykina, Kabaly Spaso-Prilutskogo monastyria.
(39) In the 17th century, the state had to work to get judges in remote areas to proceed with executions, overcoming servitors' habit of getting Moscow's consent in capital and other serious cases. Officials in regional outposts seemed to be nervous about going ahead on their own and bombarded the center with requests for advice and instructions. As Kollmann puts it, "Judges had autonomy, the center had oversight, and litigants could sometimes appeal" (Crime and Punishment, 158-65).
(40) Carol B. Stevens, "Everyday Law in Moscow's Military Suburb, 1690-1725," paper presented at the workshop "Everyday Law in Russia: 17th to 21st Centuries," Wissenschaftskolleg zu Berlin, 1-2 October 2015.
(41) See Jane Burbank, Russian Peasants Go to Court: Legal Culture in the Countryside (Bloomington: Indiana University Press, 2004), 84-87, 119-29.
(42) Antonov, Bankrupts and Usurers.
(43) Galina Ul'ianova, Dvortsy, usad'by, dokhodnye doma: Istoricheskie rasskazy o nedvizhimosti Moskvy iPodmoskov 'ia (Moscow: Forum Neolit, 2012).
(44) Robert D. Crews, For Prophet and Tsar: Islam and Empire in Russia and Central Asia (Cambridge, MA: Harvard University Press, 2006), 149-66.
(45) Stefan B. Kirmse, "Dealing with Crime in Late Tsarist Russia: Muslim Tatars and the Imperial Legal System," in One Law for All? Western Models and Imperial Practices in (Post-) Imperial Contexts, ed. Kirmse (Frankfurt am Main: Campus, 2012), 209-41.
(46) Obshcheepolozhenie o krest'ianakh (hereafter OPK), st. 50.
(47) Anna Joukovskaia, "Marriage Termination in Russia in the 18th Century: Doctrine, Practices, Intermediaries," paper presented at the workshop "The Middle Level of the Law: Russia, 17th to 21st Centuries," Institut des etudes avancees de Nantes/Wissenschaftskolleg zu Berlin, 2-3 December 2015.
(48) The bookkeepers of northern Russia's monasteries kept detailed accounts on all the money and goods paid as fees (pochest') and bribes (posuly) in court litigations and other interactions with state authorities. See P. V. Sedov, "Podnosheniia v moskovskikh prikazakh XVII v.," Otechestvennaia istoriia, no. 1 (1996): 139-50; and Sedov, "Podnosheniia v sisteme voevodskogo upravleniia Novgoroda XVII v.," Novgorodskii istoricheskiisbornikl, 17 (1999): 130-63.
(49) OPK, st. 137.
(50) Burbank, Russian Peasants Go to Court, 58, 65-67.
(51) On serfs and masters in the law, see Alessandro Stanziani, "Free Labor--Forced Labor: An Uncertain Boundary? The Circulation of Economic Ideas between Russia and Europe from the 18th to the Mid-19th Century," Kritika 9, 1 (2008): 27-52. On Muslim complaints about mullahs, see Crews, For Prophet and Tsar, 116-27; and Jane Burbank, "Hie Ties That Bind: Sovereignty and Law in the Late Russian Empire," in One Law for All', 153-79.
(52) Aaron Retish, "Everyday Law in the Soviet Countryside, the 1920s," unpublished paper citing his archival work.
(53) Jane Burbank, "Lenin and the Law in Revolutionary Russia," Slavic Review 54, 1 (1995): 23-44.
(54) This point was made by Yoram Gorlizki, "Theft under Stalin: A Property Rights Analysis," Economic History Review 69, 1 (2016): 297. The quotation is from O. V. Khlevniuk et al., eds., Stalin i Kaganovich: Perepiska, 1931-1936gg. (Moscow: Rosspen, 2001), 246.
(55) Izvestiia reported on 26 March 2001 that Russian courts were hearing an average of 500 cases and that the courts processed more than 8 million cases per year (1.5 million criminal cases, 4 million civil cases, and almost 4 million administrative cases) and that the courts were "clogged" by these case loads: RFE/RL NEWSLINE 5, 60, pt. 1 (27 March 2001).
(56) On automobile crashes and courts, see Kathryn Hendley, Everyday Law in Russia (Ithaca, NY: Cornell University Press, 2016), 90-133.
(57) Ibid., 184, 195, 218.
(58) Brewer, "'Iz poslushaniia Ego Velichestva.'"
(59) Hendley, Everyday Law, 218-21.
(60) A. E. Presniakov, Kniazhoe pravo v drevnei Rusi: Ocherki po istorii X-XII stoletii (St. Petersburg: Aleksandrov, 1909). Following prerevolutionary tradition, personal loyalty to the sovereign was cultivated in the Soviet and post-Soviet administration. The circle of Stalin's aides, the ministers of the USSR, informally called him "master" (khoziain). On this practice, see O. V. Khlevniuk, Khoziain: Stalin i utverzhdenie stalinskoi diktatury (Moscow: Rosspen, 2010). It is worth noting here that in 2016 two of Putin's bodyguards were appointed governors in Kaliningrad and Tula oblasts: "Vladimir Gruzdev podskazhet, na kakie voprosy obratit' vnimanie v pervuiu ochered'," Kommersant, 3 February 2016; "Putin naznachil kaliningradskim gubernatorom svoego byvshego okhrannika," Meduza, 30 July 2016.
(61) Daniel H. Kaiser, The Growth of the Law in Medieval Russia (Princeton, NJ: Princeton University Press, 2014), 94-127.
(62) M. N. Tikhomirov and P. P. Epifanov, Sobornoe ulozhenie 1649goda (Moscow: Izdatel'stvo Moskovskogo universiteta, 1961); Richard Hellie, trans., The Muscovite Law Code (Ulozhenie) of 1649, pt. 1: Text and Translation (Irvine, CA: Charles Schlacks, 1988), 2. On the publication of laws, see Simon Franklin, "Printing and Social Control in Russia 2: Decrees," Russian History 38, 4 (2011): 467-92.
(63) Polnoe sobranie zakonov Rossiiskoi imperii. Sobranie pervoe (1649-1825), 45 vols. (St. Petersburg: Tipografiia Vtorogo otdeleniia Sobstvennoi Ego Imperatorskogo Velichestva kantseliarii, 1830-1916), vol. 1, st. 216.
(64) Marianna Muravyeva, "The Culture of Complaint: Approaches to Complaining in Russia-An Overview," Laboratorium 6, 3 (2014): 93-104.
(65) "Sudebnik 1497 goda," in Rossiiskoe zakonodatel 'stvo X-XX vekov: Zakonodatel 'stvo perioda obrazovaniia Russkogo tsentralizovannogogosudarstva (Moscow: Iuridicheskaia literatura, 1985), 2:59.
(66) "Sudebnik 1550 goda," in Rossiiskoe zakonodatel'stvo X-XX vekov, 2:109, 114.
(67) Serov, Sudebnaia reforma Petra I, 268.
(68) OPK, st. 115.
(69) For more detail, see Tatiana Borisova, "The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality," Law and History Review 30, 3 (2012): 901-25.
(70) On legal education, see Julia Berest, The Emergence of Russian Liberalism: Alexander Kunitsyn in Context, 1785-1840 (New York: Palgrave Macmillan, 2011).
(71) Recent examples of scholarly preoccupation with the opposition of Russian legal professionals to "Western" practices in the field of Russian law studies can be found in "Law Enforcement and the Courts in Russia: Studies from the Institute of the Rule of Law of European University at St. Petersburg," special issue of Russian Politics and Law 54, 2-3 (2016). In the introduction Peter Solomon and Vadim Volkov underline that many scholars at the institute and authors in the special issue "have studied in the West and engage in scholarly discussions with colleagues there" (108).
(72) Burbank, "Lenin and the Law," 23-44; Tatiana Borisova, "The Legitimacy of the Bolshevik Order, 1917-1918: Language Usage in Revolutionary Russian Law," Review of Central and East European Law 37, 4 (2012): 395-419.
(73) Aaron Retish, "Controlling Revolution: Understandings of Violence through the Rural Soviet Courts, 1917-1923," Europe-Asia Studies 65, 9 (2013): 1789-1806, here 1794.
(74) See, e.g., Peter Holquist, '"In Accord with State Interests and the People's Wishes': The Technocratic Ideology of Imperial Russia's Resettlement Administration," Slavic Review 69, 1 (2010): 151-79.
(75) See, e.g., mostly unpublished divorce letters and a corpus of published petitions. Petitions from the 17th and 18th centuries are available in Russkaia istoricheskaia biblioteka (1908), especially vols. 12, 14, and 25.
(76) James Heinzen, The Art of the Bribe: Corruption under Stalin, 1943-1953 (New Haven: Yale University Press, 2016).
(77) Michel Tissier, "Les societes juridiques dans l'Empire russe au tournant du XXe siecle," Cahiers du monde russe 51, 1 (2010): 5-34; Tissier, "Legal Literature 'for the People' and the Use of Language (Late Nineteenth and Early Twentieth Century)," in Public Debate in Russia: Matters of (Dis) Order, ed. Nikolai Vakhtin and Boris Firsov (Edinburgh: Edinburgh University Press, 2016).
(78) Antonov, Bankrupts and Usurers; Ul'ianova, Dvortsy, usad'by, dokhodnye doma; Galina Ulianova, Female Entrepreneurs in Nineteenth-Century Russia (London: Pickering & Chatto, 2009).
(79) For example, Girish Bhat used the term "the rule of zakon" and suggested that Russian legality "as political instrumentalism, arguably rooted in the promulgation and implementation of the law codes of Rus', emerged explicitly under the purview of autocracy as early as the Petrine period" ("The Rule of Zakon in Late Imperial Russia: The Criminal Cassation Department and Legality in Late Imperial Russia, 1866-94," Russian Review 72, 4 : 622-46, 623).
(80) "Konstitutsiia (Osnovnoi zakon) Rossiiskoi Federatsii" (Constitution [Fundamental Law] of the Russian Federation) (12 December 1993), Rossiiskaia gazeta, 25 December 1993, art. 15.
(81) Tatiana Borisova, "Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-Century Russia," Review of Central and East European Law 33, 3(2008): 295-341.
(82) Quoted in Petr Maikov, Vtoroe otdelenie Sobstvennoi Ego Lmperatorskogo Veliehestva kantseliarii 1826-1882 (St. Petersburg: I. N. Skorokhodov, 1906), 191.
(83) The penal code, promulgated in 1845, was drafted in a more original mode with less dependence on previous legislation. However, it was included in the Digest of Laws and thus was subject to codificational editing procedures.
(84) Polnoe sobranie zakonov Rossiiskoi imperii: Sobranie vtoroe. S 12 dekabria 1825 goda po 28 fevralia 1881 goda, 55 vols. (St. Petersburg: Tipografiia Vtorogo otdeleniia Sobstvennoi Ego Imperatorskogo Velichestva kantseliarii, 1830-1884), 31 January 1833, vol. 8, st. 5947.
(85) Svod zakonov Rossiiskoi Imperii: Poveleniem Gosudaria Imperatora Nikolaia Pavlovicha sostavlennyi (St. Petersburg: n.p., 1892); "Uchrezhdenie Pravitel'stvuiushchego Senata, izdaniia 1915 goda i ego izmenenie zakonom 16 dekabria 1916," in Sobranie uzakonenii i rasporiazhenii pravitel 'stva (1917), no. 11, art. 68.
(86) M. M. Speranskii, "Obozrenie istoricheskikh svedenii o Svode zakonov: Ob"iasnitel'naia zapiska soderzhaniia i raspolozheniia Svoda zakonov grazhdanskikh," in his Rukovodstvo k poznaniiu zakonov (St. Petersburg: Nauka, 2002), 145-46.
(87) Tat'iana Borisova, "Zakon i zakonnost' v russkom kodekse 1906-1917 gg.," in Istochnik. Istorik. Istoriia, ed. M. M. Krom (St. Petersburg: Izdatel'stvo Evropeiskogo universiteta v Sankt-Peterburge, 2002), 11-41, here 24-25.
(88) Borisova, "Russian National Legal Tradition."
(89) Borisova, "Zakon i zakonnost'."
(90) William Pomeranz, "The Procuracy from Peter the Great to Vladimir Putin: The Indispensable Institution," paper presented at the workshop "The Middle Level of the Law: Russia, 17th to 21st Centuries," Institut des etudes avancees de Nantes/Wissenschaftskolleg zu Berlin, 2-3 December 2015.
(91) A. A. Sobchak, Diuzhina nozhei v spinu: Pouchitel'naia istoriia o rossiiskikh politicheskikh nravakh (Moscow: Vagrius, 1999), 93.
(92) Hendley, "Varieties of Legal Dualism," 233-62.
(93) Kollmann, Crime and Punishment, 166.
(94) Ibid., 167; Elena Bogdanova, "Complaining to Putin: A Traditional Way of Solving Problems in Nowadays Russia," paper presented at the workshop "Law-making and Law-interpreting: Russia, 17th to 21 st Centuries," Wissenschaftszentrum Berlin fur Sozialforschung/ Wissenschaftskolleg zu Berlin, 4-5 February 2016.
(95) Benjamin Nathans, To the Success of Our Hopeless Cause: A History of the Soviet Dissident Movement (forthcoming), chap. 6. There is an enormous literature on dissidence and human rights. Let us simply note here the centrality of law and the prominence of lawyers in the oppositional movements.
(96) Sabine Dullin, La frontiere epaisse: Aux origines despolitiques sovietiques (1920-1940) (Paris: Editions de l'EHESS, 2014).
(97) See, e.g., Francine Hirsch, "The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order," American Historical Review 113, 3 (2008): 701-30.
(98) Cynthia H. Whittaker, "The Reforming Tsar: The Redefinition of Autocratic Duty in Eighteenth-Century Russia," Slavic Review 51, 1 (1992): 77-98.
(99) S. S. Alekseev, Krug zamknulsia (Ekaterinburg: AMB, 2001); A. P. Kazun and A. A. Iakovlev, "Rossiiskie advokaty: Stanovlenie professional'nogo soobshchestva v nesovershennoi institutsional'noi srede," Obshchestvennye nauki i sovremennost', no. 6 (2014): 39-56.
(100) Note that while the juries on the circuit courts were infamously "all-estate," the circuit courts were not the only courts after the reform of 1864. The vast majority of cases were adjudicated in lower-level jurisdictions for different groups in the population.
(101) Tat'iana Borisova, "Neobkhodimaia oborona obshchestva: Iazyk suda nad Zasulich," Novoe literatumoe obozrenie, no. 135 (2015): 101-19.
(102) Even the remarkable law on the rehabilitation of victims of Stalinism was an initiative begun in the last years of the Soviet regime. See Cathy A. Frierson's two working papers: "Russia's Law 'On Rehabilitation of Victims of Political Repression': 1991-2011, an Enduring Artifact of Transitional Justice," and "The Decline of the Russian Federation's Commitment to Victims of Soviet Political Repression: The Law 'On Rehabilitation of Victims of Political Repression of 1991," prepared for the National Council for Eurasian and East European Research, n.d.
(103) Eugene Huskey, Russian Lawyers and the Soviet State: The Origins and Development of the Soviet Bar, 1917-1939 (Princeton, NJ: Princeton University Press, 1986); Marc Jansen, A Show Trial under Lenin: The Trial of the Socialist Revolutionaries, Moscow 1922 (The Hague: Martinus Nijhoff, 1982).
(104) Anne O'Donnell, "Revolution and Its Discontents: The Central Bureau of Complaint, 1918-1922," paper presented at the conference "Complaints: Cultures of Grievance in Eastern Europe and Eurasia," held at Princeton University, 8-9 March 2013.
(105) Burbank, "Lenin and the Law," 40.
(106) For example, see Yves Cohen on the law against gleaning of 7 August 1932 (Le siecle des chefs, 735-62).
(107) On judges' systemic avoidance of acquittals, see V. V. Volkov et al., Rossiiskie sud'i: Sotsiologicheskoe issledovanie professii (Moscow: Norma, 2015), 210. On the tendency to convict, see K. B. Kalinovskii, "Obvinitel'nyi uklon v ugolovnom suduproizvodstve: Normativnye predposylki v deistvuiushchem rossiiskom zakonodatel'stve," in Obvinenie i opravdanie v post-sovetskoi ugolovnoi iustitsii, ed. Volkov (Moscow: Norma, 2015), 93-103. For the ways in which criminal cases come to trial, see M. S. Shkliuruk, "Rossiiskii ugolovnyi protsess kak sistema fil'trov: Dosudebnye traektorii i otbor ugolovnykh del na primere Ministerstva vnutrennikh del Rossiisskoi Federatsii," in Obvinenie i opravdanie v postsovetskoi ugolovnoi iustitsii, 154-82.
(108) V. I. Lenin, Polnoe sobranie sochinenii, 5th ed., 55 vols. (Moscow: Gosudarstvennoe izdatel'stvo politicheskoi literatury, 1958-65), 36:197.
(109) Cited in Kathryn Hendley, "Who Are the Legal Nihilists in Russia?," Post-Soviet Affairs 28, 2 (2012): 149-86.
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|Author:||Borisova, Tatiana; Burbank, Jane|
|Date:||Jun 22, 2018|
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